Contesting and Defending the Special Tribunal for Lebanon

Following the words of Resolution 1757, the STL has been founded as a hybrid Tribunal “mindful of the demand of the Lebanese people that all those responsible for the terrorist bombing that killed former Lebanese Prime Minister Rafiq Hariri and others be identified and brought to justice.” However, in reality the STL Statute has been enforced under Chapter VII of the UN Charter, posing several legal concerns under international law.

Arguments by the Defence

During last week’s hearing in Leidschendam, the defence counsel brought forward various arguments to support their motions against the legality of the Tribunal, such as the fact that the Lebanese Parliament never consented to the formation of the STL. The Lebanese government had engaged in negotiations with the UN, yet the Lebanese Parliament never ratified any agreement for the establishment of the Special Tribunal for Lebanon. In the view of the defence, the Security Council abused its powers by enacting the STL Statute on the basis of Chapter VII, while bypassing the law of treaties violating Lebanon’s sovereignty and disobeying Lebanon’s constitutional democratic division of powers.

The conditions for a resolution under Chapter VII were, in the opinion of the defence, never met. Under Article 39 of the UN Charter, the Security Council can decide to take measures “to maintain or restore international peace and security” if there is “any threat to the peace, breach of the peace, or act of aggression”. The defence argued that the assassination of former Prime Minister Rafiq Hariri did factually “not lead to international disturbance on the same level as that of an internal armed conflict or large-scale violence.” The Lebanese situation was “not only the first, but the only one”, with respect to which an “act of political violence” has been described as a threat to the peace.

As the defence counsel highlighted, acknowledging the creation of the STL as lawful would create a precedent extending the rights of the Security Council. The “structure of international society and the principles of international law” allow interventions only with “caution” in the face of massive and unacceptable human rights violations, i.e. “when the government massacres its own population.” In all other cases, UN member states “do not wish to subject their political system of government to scrutiny” by the Security Council. Accepting the establishment of the Tribunal would endanger the principle of state sovereignty over internal affairs and, lastly, destabilize international order.

In addition, the defence stressed that the institution of the STL “constitutes a spectacular assault on the principle of non-discrimination and equality before justice.” The Special Tribunal for Lebanon does not comply with its own proclaimed “highest standards” of “international justice” by singling out a selective case, just because of the exclusive request of one political faction. Previous ad hoc tribunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), have addressed crimes “which caused thousands of civilian deaths and missing persons”, whereas the STL mandate is selective.

Response of the STL Prosecution and Victim Representatives

The prosecution countered that the review of the STL’s jurisdiction cannot entail a full assessment of the founding process and must instead “be limited to whether the scope of the indictment goes beyond the Tribunal’s mandate”. The STL prosecution also argued that the defence does “not have standing to raise violations of Lebanon’s sovereignty”, but can only plead violations of the individual rights of the suspects.

With regard to the decision-making process within Lebanon, the prosecution submitted that the request for the STL followed a decision by the Lebanese Council of Ministers. The Lebanese President was also “involved in the negotiations, which led to the approval of the agreement.” Moreover, Lebanon continues its cooperation with the STL, which “confirms that no breach of its sovereignty has taken place.”

Victim representatives stated that the STL is not only an “institution with a sound legal basis”, but is also the “only forum competent or capable of giving effect to the rights of the victims” to the February 14, 2005 attack. “Far from contravening fundamental international human rights standards”, the establishment of the Tribunal was “necessary to uphold and protect the fundamental human rights of the victims.”

Outlook and Way Ahead

Disregarding whether the Trial Chamber confirms or rejects the motions, the ruling will certainly be a landmark decision in international criminal law.

The judges’ authority to review their own jurisdiction (“Kompetenz-Kompetenz”) rests on previous practice in international law. In the Tadić Appeals Chamber decision, the ICTY held that the establishment of the ad hoc Tribunal fell squarely within the powers of the UN Security Council under Chapter VII of the UN Charter. Under the auspices of the then-ICTY President Antonio Cassese, the Appeals Chamber decided that the judges are “empowered to pronounce upon the plea challenging the legality of the establishment of the International Tribunal.” A contrary decision would have left the indicted without legal protection and would have undermined the “judicial function” of the Tribunal.

Subsequent practice under the UN Charter suggests that the Security Council has a wide margin of appreciation to assume a threat to international peace. As emphasised in the ICTY Appeals Chamber decision, “the wider the discretion of the Security Council under the Charter of the United Nations, the narrower the scope for the International Tribunal to review its actions, even as a matter of incidental jurisdiction.” As the ICTY specified, decisive is whether the action of the Security Council and the jurisdiction of the Tribunal are in “manifest contradiction with the Principles and Purposes of the Charter.” This could be the case if the Security Council deliberately utilizes its powers to destabilize peace and security instead of protecting these premises of the UN Charter. Whether this has been the intention of the members of the Security Council supporting the STL is hard to prove. Security Council resolutions are inherently political.  No provision of the UN Charter prohibits Council members from acting in line with their own interests. Resolution 1757 was adopted under extremely tense circumstances, but obtained ten out of fifteen votes. Besides South Africa, Indonesia and Qatar, the Russian Federation and China abstained from voting, although they could have vetoed the decision, as practiced in several other cases.

However, the construction of the STL as a hybrid Tribunal established under Chapter VII, while asserting a “demand of the Lebanese people”, plausibly causes misunderstandings. The decision of the STL Trial Chamber will denote how candidly international ad hoc judiciaries justify their own existence. The judgment about whether domestic assassinations as acts of political violence can be presumed as a threat to international peace will be an indicator for how much more the Security Council is endorsed to cut into the internal affairs of sovereign states. In one way or the other, the ruling of the STL Trail Chamber will signify the independence of judges in international judiciaries and impact on the credibility of “international justice”.

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